Chapter introduction

Right and Protection of the Accused

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3.2 Right and Protection of the Accused
Criminal justice system is not only for punishing accused but also for reforming him as suitable and law abiding person of the society, and that is why they are allowed to have following rights-

3.2.1 Right to be Produced Before a Magistrate
The police cannot keep a person under arrest for a longer time than is necessary without producing him before a magistrate. There are provisions in the Constitution of Bangladesh and the Code Criminal Procedure, according to which a maximum time of 24 hours is allowed to the police to produce an accused person before a magistrate. These portions go a long way in guarding the personal liberty of the individual.11

Police Custody and Arrest
There are two kinds of offences in Bangladesh under criminal law: non-cognizable and cognizable. Cognizable offences, as enumerated in Section 4(f) of the Code of Criminal Procedure, 1898 (Cr.P.C.), are those in which a police officer may arrest without a warrant and include crimes such as murder, robbery, theft, rape, rioting and assault. Non-cognizable offences, which include bribery and sedition, require a police officer to first obtain a warrant before making an arrest. Section 54 of the Code of Criminal Procedure, 1898 (Cr.P.C.) enumerates nine grounds in which a police officer may arrest without a warrant.
As stated by many human rights activists and lawyers met by the human rights organization delegation in Bangladesh, police very often abuse this power of unwarranted arrest under Section 54. Several of the nine circumstances enumerated in Section 54 of the Code of Criminal Procedure, 1898 are drafted with such nebulous wording that they facilitate this abuse of power. The Supreme Court itself has called for a revision of the code, especially Section 54(a), which allows unwarranted arrest upon “reasonable suspicion,” “reasonable complaint,” or “credible information” against “any person who has been concerned in any cognizable offence.” This section is a virtual carte blanche for the police to abuse their power of arrest without a warrant due to the nebulous phrases “concerned in any cognizable offence” and “reasonable suspicion.”
As in other common law countries, statutory “reasonable suspicion” wording has been interpreted by the High Court Division of the Bangladesh Supreme Court into an articulate standard, that the arresting officer had “actual knowledge of underlying facts that lead to the suspicion.” Unfortunately, however, this standard has not been enforced or applied by local courts or authorities, which has rendered the Supreme Court’s power of statutory interpretation impotent. The rules of the Code of Criminal Procedure, 1898 dealing with the investigation and arrest by police therefore facilitate the misuse of the power of arrest without a warrant.
In Bangladesh, every criminal action commences with a First Information Report (FIR), lodged by the victim, relatives, or a witness. The FIR is a written or oral complaint to the investigating officer who must lodge the complaint in writing in the police records per Section 154 of the Code of Criminal Procedure, 1898. In a case of a cognizable offence, any officer of a police station may, without the order of a Magistrate, investigate the matter. According to Mr. Arafat Amin, Advocate to the Supreme Court of Bangladesh, when a FIR is lodged in the police station, describing a cognizable offence, the common practice is that the police immediately seek out and arrest the persons named in the FIR, regardless of the suspects’ involvement in the crime. Following the arrest, the suspect must be produced in front of a magistrate within 24 hours, per section 61 of the Code of Criminal Procedure, 1898.
Several human rights activists and lawyers think that naming a person in a FIR is often a way for people to strike back at their enemies or perpetuate neighborly squabbles. This practice of false, vengeful reporting is particularly common in acid throwing cases and other cases falling under the laws protecting women and children. The nature of the FIR and their accompanying improper police practices allow citizens to “manipulate” the justice system and to involve it in private conflicts.
After the FIR has been submitted and an arrest is made, according to Article 33 (2) of the Constitution of the People’s Republic of Bangladesh, Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate. Section 61 of the Code of Criminal Procedure, 1898 requires that the defendant is brought in front of a magistrate within 24 hours of incarceration in order to determine whether further detention is necessary. Under Section 167 of the Code of Criminal Procedure, 1898, however, magistrates can allow remand the case for a period not exceeding 15 days at the request of the officer. This infamous remand process has widely been denounced as another vehicle for the abuse of police power. In order to ask for further detention in police custody, police must demonstrate that there are grounds for believing that the accusation or information upon which the arrest is based is well-founded. However, as stated inter alia “it is common knowledge that Magistrates routinely allow this request for remand.
In most of the cases police do not present the arrested person in front the magistrate, even they deny about the arrest. As for example we said about the arrest of Tanvir Rahman and Polash Rudro who were arrested by RAB in journalist couple Sagor-Runi murder case. But RAB was conformed their arrest after 9 days of arrest. The honorable chairman of National Human Rights Commission (NHRC) Prof. Dr. Mizanur Rahman said that, this act of the police is not only hypocrisy with the court but also hypocrisy with the state and constitution. He also said this type of complains are available in the commission. The executive director of ASK Advocate Sultana Kamal said about that, this type activities of police or RAB come to negative impact on Human Rights, Democracy and Rule of law.

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